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Court Again Denies Dish Hopper Injunction

PASADENA, CALIF. — The judges who heard Fox lawyers appeal for an
injunction against Dish’s Hopper last week didn’t buy the network’s argument. The
U.S. Court of Appeals for the Ninth Circuit denied Fox’s request to reverse a
denial of injunction from Judge Dolly Gee of the U.S. District Court for the
Central District of California.

Richard Stone argued last Monday that
Fox would suffer irreparable harm if Dish were allowed to continue marketing
and enabling the Hopper, a set-top box that automatically can be programming to
record broadcast TV programming in primetime and to skip the commercials. Judges
Marsha S. Berzon, John
T. Noonan, Jr., and Dana M. Sabraw were skeptical, given Dish could provide
subscriber numbers for the Hopper and therefore estimates of damages could
indeed be calculated.

The three-judge panel said the district court did not error in concluding that
Fox did not demonstrate harm that could not be remedied by payment.
“Irreparable harm” must be demonstrated for a preliminary injunction to be
issued.

Dish introduced the Hopper at the 2012 Consumer Electronics Show and rolled it
out in March of that year. Broadcasters sued in the California court in May,
while Dish countersued within 24 hours in the U.S. District Court in Manhattan,
which found in 2008 that Cablevision’s digital video recording set-top box did
not violate network copyrights. Dish was rolling with the Cablevision precedent, but it countersued a little too quickly and
was found to be “improperly anticipatory.” The case was left for the California
courts to hash out.

Judge Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit
previously affirmed Judge Gee’s denial of a preliminary injunction predicated on
the question of whether or not the Hopper violated copyright. Both judges said
Fox had a greater chance of proving breach of contract, given that ad-skipping specifically
was prohibited in video-on-demand in the 2010 carriage contract between Fox and
the satellite TV provider. Both judges indicated that Dish failed explain how
the Hopper’s function was different from VOD.

The case remains in Gee’s court.See…
July 7, 2014, “Fox
v. Dish Hopper: Court Skeptical of ‘Irreparable Damages”An attorney for
Fox implored a trio of federal judges to kibosh Dish’s hopper, which can be set
to automatically record primetime broadcast TV programming and skip the
commercials. Richard Stone, arguing for Fox, said the district court that
initially denied the injunction against Dish abused its discretion by departing
from precedent set in previous streaming cases

June 25, 2014,
“Broadcasters
Prevail in Aereo”
“Aereo performs petitioners works publicly within the meaning of the transmit
clause of the Copyright Act,” Amy Howe said in Bloomberg’s live blog of the
U.S. Supreme Court.July 24, 2013,
“Judge:
Dish May Have Breached Fox Contract”
Fox has more of a chance demonstrating that Dish breached its contract rather
than violated copyright law with the Hopper, according to a court opinion
released today.

November 12, 2012: “Fox
Appeals to Stop the Hop”
Fox’s legal team wasted no time in appealing a federal judge’s decision last
week to let Dish keep on skipping broadcast TV commercials.

November 8, 2012: “Judge
Lets Dish Keep On Hopping”
In May, as the networks prepared to sue, news of those impending lawsuits
leaked. Within 24 hours, Bloomberg
said Dish countersued in U.S. District Court in Manhattan.